Abstract:
The actual and perceived conflicts between customary law and human rights
law, especially in issues dealing with gender equality, have remained a major
challenge in Africa. Some of these conflicts are further complicated by the
varying and contradictory interpretation of some customary laws by the courts.
Different approaches have been adopted at different times and in different
places to deal with some of these conflicts. One of the most controversial areas
of customary law has been the traditional exclusion of women from property
inheritance. This paper takes a critical look at how the courts in Botswana have
dealt with the issue of the right to inherit the homestead or family home.
It examines this issue in the specific context of the recent case of Ramantele v
Mmusi in which the Court of Appeal had to consider the customary law rule
of male ultimogeniture – which permits only the last-born son to inherit
the homestead intestate to the exclusion of other siblings, especially females.
It argues that courts need to be more proactive and progressive in their
approach to dealing with such issues than they have been in the past in order to
recognise the nature and extent of changes that are taking place today. The
main lesson that can be drawn from the Botswana case is that if customary law
is to survive and develop, more needs to be done to promote research and
scholarship in this area and judges also need to take advantage of this research and deal with these customary law disputes with knowledge, understanding
and sensitivity.
